Patna High Court
United Motor Works And Co. Ltd. vs The State Of Bihar And Ors. on 25 September, 1963
Equivalent citations: AIR1964PAT157, AIR 1964 PATNA 154
Bench: V. Ramaswami, N.L. Untwalia
JUDGMENT Ramaswami, C. J. 1. The State Transport Authority, Bihar, advertised a vacancy for grant of a stage carriage permit for the route Jamshedpur-Bhadrak. via Rairangpur, Baripada and Balasore, which is an inter-State route between Bihar and Orissa. On the 3rd May, 1961, the State Transport Authority considered the ten applications received in respect of the grant of the stage carriage permit and by its resolution decided to grant a permit for the said route to the United Motor Works and Company Limited for a period of three years. Against the order of the State Transport Authority Nilratan Prasad Shaw and Tansjikh Rai Jain preferred appeals under Section 64 of the Motor Vehicles Act before the appellate authority, and after hearing the parties the appellate authority, namely, the Deputy Minister of Transport, set aside the order of the State Transport Authority and ordered that the grant of permit should be made in favour of Nilratan Prasad Shaw. Against this ordsr the United Motor Works and Company Limited and Tansukh Rai Jain presented applications in revision under Section 64-A of the Motor Vehicles (Bihar Amendment) Act, 1949, before the State Government. On the 13th July, 1962, the applications were heard by the Minister of Transport, On the 8th October, 1962, the Minister of Transport ordered that the permit should be granted to Tansukh Rai Jain and not to Nilratan Prasad Shaw. 2. In Miscelianeous Judicial Case No. 7 of 1963 the application is made on behalf of the United Motor Works and Company Limited for quashing the order of the Deputy Minister of Transport dated the 27th October, 1961, and the order of the Minister of Transport dated the 8th October, 1962, and for restoring the order of the State Transport Authority dated the. 3rd May, 1961, in exercise of the powers vested in the High Court under Article 227 of the Constitution. 3. In Miscellaneous Judicial Case No. 1381 of 1962 the application is made on behalf of Nilratan Praaad Shaw for quashing the order of the Minister of Transport dated the 8th October, 1962, and for restoring the order of the Deputy Minister of Transport dated the 27th October, 1951, in exorcise of the authority vested in the High Court under Article 227 of the Constitution. . 4. In Miscellaneous Judicial Case No. 7 of 1963 the main argument presented on behalf of the petitioner is that the order of the Deputy Minister of Transport dated the 27th October, 1961, and the order of the Minister of Transport dated the 8th October, 1962, are illegal and without jurisdiction because both these appellate, authorities have taken into account two certified copies of orders, annexures B/1 and B/2, dated the 24th August, 1958, and 13th July, 1961, in deciding the appeals. It was submitted on behalf of the petitioner that these documents are the certified copies of the orders of the Regional Transport Authority dated the 24th August, 1958, and 13th July, 1961, and these documents were produced for the first time before the Deputy Minister of Transport at the time of the hearing of the appeal. The argument was stressed that the appellate authority had no legal power to take those additional documents into evidence because neither the statute nor the statutory rules provide for any power of taking additional evidence before the appellate authority, I am unable to accept the argument put forward on behalf of the petitioner as correct. In the present case the two documents, annexures B/1 and B/2, were submitted by the respondent under Rule 72 of the Bihar Motor Vehicles Rules to the Deputy Minister of Transport within 14 days of the receipt of the intimation of the hearing of the appeal. It is not disputed that these documents were relevant because they related to the bad record of the service of the United Motor Works and Company Limited. It was submitted on behalf of the petitioner that the appellate authority cannot take into consideration matters other than the representations contemplated under Section 57, Sub-section (3) of the Motor Vehicles Act. But there is no warrant for this argument. Section 47 of the Motor Vehicles Act lays down the substantive law for the Regional Transport Authority in considering an application for stage carriage permits. In deciding whether to grant or refuse a stage carriage permit the Regional Transport Authority shall have regard to the matters mentioned in Sub-clauses (a) to (f) Sut-section (1) of Section 47. Section 47, Sub-section (1), states as follows: "47. (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely.-- (a) the interest of the public generally; (b) the advantages to the public of the service to be provided, including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served; (d) the benefit to any particular locality or localities likely to be afforded by the service (e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area; and shall also take into consideration any representations made by persons already providing passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State. Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route or area lies." Therefore the Regional Transport Authority should consider the matters mentioned in these sub-clauses before granting or refusing to grant a permit. Sub-clause (a) of Section 47 (1) requires that the Regional Transport Authority should consider the interest of the public in general and Sub-clause (e) requires that regard should be had to the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending. In addition to these matters the Regional Transport Authority is also required to take into consideration any representations made by persons already providing road transport facilities along or near the proposed route and representations made by any association representing persons interested in the provision of road transport facilities recognised in this behalf by the State Government, or by any local authority or police authority within whose jurisdiction any part of the proposed route lies. It is, therefore, clear that apart from the objections put forward by 'individuals against the granting of permits, the Regional Transport Authority is also required to consider other matters. In other words, the considerations mentioned in Section 47 of the Motor Vehicles Act should be in addition to the considerations and objections raised under Sub-section (3) of Section 57 of the Act. It is also manifest that the power of the appellate authority is co-extensive with the power of the Regional Transport Authority in this respect; and there is no reason why the appellate authority should not take these matters into consideration in deciding the appeal under Section 64 of the Act. The view that I have expressed is supported by a decision of the Madras High Court in Ramayya v. State of Madras, AIR 1952 Mad 300 and also by a decision of the Supreme Court in New Prakash Transport Co. Ltd. v. New Suwarna Transport Co. Ltd., (S) AIR 1957 SC 232. In the latter case two motor transport companies, 3 and P, applied for permit for certain route. The permit was granted to S, while the application of P was rejected on the ground that the police report was against it. P thereupon preferred an appeal to the appellate authority. The appellant challenged the correctness of the police, report against it, whereupon a second police report was placed before the appellate authority. The appellate authority read out the second police report to the parties. Neither party raised any objection to the Use of that document, nor asked for an adjournment on the ground either that it had been taken by surprise or that it had materials to offer in opposition to the report. The appellate authority allowed the appeal and ordered permit to be issued to P. S thereupon moved the High Court under Article 226 of the Constitution on the ground that the order passed by the appellate authority contravened the principles of natural justice as the revised police report had not been shown to the petitioner who had been offered no real and effective opportunity to deal with the report. The High Court allowed the application and granted a writ quashing the order of the appellate authority. The order of the High Court was sot aside by the Supreme Court on the ground that there was no violation of natural justice and the fact that the appellate authority had read out the contents ot the second police report was enough compliance with the rules of natural justice. It was also pointed out by the Supreme Court in that case that the Motor Vehicles Act and the rules framed thereunder do not contemplate anything like a regular hearing in a Court of Justice and no elaborate procedure has been prescribed as to how the parties interested have to be heard either before the Regional Transport Authority or before the Appellate Transport Authority. The principle is well established that in the absence of any such prescribed procedure the appellate authority may adopt any procedure which it thinks best for hearing the appeal provided always that the rules of natural justice are observed. The matter has been clearly put by Lord Loreburn in the course of his speech in Board of Education v. Rice, 1911 AC 179, as follows: "Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of Stata the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon every one who derides anything. But I do not think they are bound to treat such a question as though it. were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view." It is not alleged by the petitioner that there has been any violation of natural justice in the present case. In the counter-affidavit it is stated by respondent No. 4, Tansukh Rai Jain, that two additional documents, annexures B/1 and B/2, were forwarded to the appellate authority as required under Rule 72 of the Bihar Motor Vehicles Rules within 14 days of the receipt of the intimation of the hearing of the appeal. It is also not alleged on behalf of the petitioner that it was taken by surprise and no adjournment of the hearing of the appeal was prayed for before the appellate authority in order to controvert the allegation contained in annexures B/1 and B/2. It is, therefore, clear that there is no violation of natural justice in this case and learned counsel on behalf cf the petitioner is unable to make good his argument that the orders of the Deputy Minister of Transport and the Minister of Transport dated the 27th October, 1961, and the 8th October, 1962, respectively, are 'ultra vires' and without jurisdiction for the reasons alleged by him. I would, therefore, dismiss Miscellaneous Judicial Case No. 7 of 1963, but there will be no order as to costs. 5. In Miscellaneous Judicial Case No. 1381 of 1962 the argument on behalf of the petitioner is that Section 64A (Bihar Amendment) is inapplicable to proceedings for grant of a permit for inter-State route and the Minister of Transport has, therefore, no revisional power in a case of this description. It was, therefore, contended that the Minister of Transport had no authority to interfere with the order of the Deputy Minister of Transport dated the 27th October, 1961, and the order of the Minister of Transport dated the 8th October, 1962, is, therefore, 'ultra vires' and without jurisdiction. In my opinion the argument of the learned Government Advocate on behalf of the petitioner is well founded and must be accepted as correct. Section 64A (Bihar Amendment) was introduced by the Motor Vehicles (Bihar Amendment) Act, 1949 (Bihar Act 27 of 1950) on the 26th June, 1950, and reads as follows "64A. The State Government may, on application made to it in this behalf, within' thirty days of the passing of the order in the course of any proceedings taken under this Chapter by any authority or officer subordinate to it, call for the records of such proceedings, and after examining such records pass such order as it thinks fit." I consider that legislation with regard to grant of stage, carriage permits for inter-State routes falls within Item 42 of List 1 of that Seventh Schedule, namely, "Inter-State Trade and Commerce". It was contended by the Advocate General on behalf of respondent No. 3, Tansukh Rai Jain, that such a legislation will fall under Item 35 of List III, namely, "Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied." I do not think there is any warrant for the submission of the Advocate General on this point. In my opinion the; power to legislate with regard to inter-State movement of motor vehicles falls within Item 42 of List 1, and if Section 64A (Bihar Amendment) is intended to apply also to stage carriage permits for inter-State routes, the State Legislature would be invading the Union field for it would be legislating on a subject which is forbidden to it by the Constitution and is expressly reserved to the Union Legislature. In such a case there would be usurpation of the legislative power of the Union under Item 42 of List 1. In a case of this description the principle to be applied is that where two constructions are possible the Court must favour such construction as to make the operation of the Act intra vires. In other words, the language used in Section 64A (Bihar Amendment) must be read down so as not to apply to stage carriage permits for inter-State routes. The principle is that no intention can be imputed to the legislature that it will exceed its own. jurisdiction. Applying the principle to this case it is manifest that Section G4A (Bihar Amendment) is inapplicable to proceedings for grant of a permit for inter-State routes and the Minister of Transport has, therefore, no revisional authority in such a case under Section 64A (Bihar Amendment). 6. The view that I have expressed is borne cut by the decision of the Judicial Committee in Hughes and Vale Proprietary Limited v. State of New South Wales, 1955 AC 241. In that case it was held that the provision of the State Transport [Co-ordination) Act of the State of New South Wales required an applicatian to be made for a licence, and all provisions consequential thereupon, in so far as they purported ta apply to, and to the operators of, public motor vehicles operated in the course of inter-State trade, were invalid as contravening Section 92 of the Constitution of the Commonwealth of Australia, which provides that "....... trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free." It was accordingly held that all the licensing provisions of the Act were inapplicable to the appellant company, which carried on business as a motor-carrier of general merchandise between Sydney in the State of New South Wales, and Brisbane in the State of Queensland, and to the vehicles while so operated. In the course of judgment-Lord Morton expressly approved the following passage from the dissenting judgment of Dixon, C. J. in. McCarter v. Brodie, 80 CLR 432 at p. 465: "I take it as finally settled that thei burdens and restrictions against which Section 92 protects inter-State Commerce are not only those which are imposed differentially upon inter-State commerce or affect it in a special manner. Inter-State commerce is protected also from restrictions and burdens which fall alike on commerce confined to a State and commerce crossing its borders. The carriage of merchandise from one State to another is not a thing incidental to inter-State commerce but in the language used by Johnson J. of navigation, in Gibbons v. Ogden, (1824) 22 US 1 (229), is 'the very thing itself; inseparable from it as vital motion is from vital existence'." 7. The principle applies to all law-making bodies with limited powers. In D'Emden v. Pedder, (1904) 1 CLR 91, the High Court of Australia held that there was no justification for assuming that a State Parliament intended general words in an enactment to have an application which would conflict with the constitution of the Commonwealth : "It is, in our opinion, a sound principle of ccnstruction that Act of a sovereign legislature, and indeed of Subordinate legislatures, such as a municipal authority, should, if possible, receive such an interpretation as will make them operative and not inoperative ...... It is a settled rule in the interpretation of statutes that general words will be taken to have been used in the wider or in the more restricted sense according to the general scope and object of the enactment." 8. For the reasons expressed I hold that Section 64A (Bihar Amendment) is inapplicable] to proceedings for grant of a permit for inter-State routes, and the Minister of Transport had no revisional power in such a case by virtue of Section 64A (Bihar Amendment). It follows, therefore, that the order of the Minister of Transport dated the 8th October, 1962, is ultra vires and without jurisdiction and must be set aside. Acting, therefore, in exercise of the authority conferred on the High Court under Article 227 of the Constitution, I would set aside the order of the Minister of Transport dated the 8th October, 1962, and restore the order of the Deputy Minister of Transport dated the 27th October, 1961, granting stage carriage permit to the petitioner in this case. I would accordingly allow Miscellaneous Judicial Case No. 3.381 of 1962, but I do not propose to order any costs. Untwalia, J.
9. I agree.